JOANNE BLAINE AND JEAN MICHELLE BURR-D'ALESSANDRO, on behalf of themselves and those similarly situated, Plaintiffs-Respondents,
PRESSLER & PRESSLER, LLP a/k/a PRESSLER and PRESSLER, LLP, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 14, 2012
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-0583-11.
Michael J. Peters argued the cause for appellant (Pressler & Pressler, attorneys; Mr. Peters and Lawrence J. McDermott, Jr., on the brief).
Henry P. Wolfe argued the cause for respondents (The Wolf Law Firm and Law Office of Dimitrios Kolovos, LLC, attorneys; Mr. Wolfe, Andrew R. Wolf and Joseph A. Mullaney, III, on the brief).
Before Judges Lihotz, Ostrer and Kennedy.
Defendant, a law firm, appeals from the denial of its motion to stay litigation and to compel arbitration. Defendant contends that the motion judge erred in holding that it was not a "party covered" by the agreement requiring arbitration and thus was not entitled to compel arbitration. We disagree and affirm.
Plaintiffs filed a putative class-action complaint against defendant in the Law Division alleging that defendant had filed false and deceptive complaints against them in the Special Civil Part on behalf of Midland Funding LLC (Midland). The Special Civil Part complaints alleged Midland had become the owner of Chase Bank USA (Chase) accounts on which plaintiffs owed money. In addition to asserting that plaintiffs were now indebted to Midland on the accounts, each Special Civil Part complaint alleged, "[a]s provided by contract, [Midland] is entitled to attorney fees of twenty-five percent of the amount due." A sum equal to twenty-five percent of the account indebtedness was thus sought in addition to the unpaid account balance.
Plaintiffs asserted that at the time the Special Civil Part complaints were filed against them, Midland had neither incurred actual attorney fees nor had it paid defendant attorney fees equaling twenty-five percent of the alleged debts they owed. They also asserted that they never entered a contract to pay Midland or "anyone" twenty-five percent of "an alleged amount due as attorney fees." Plaintiffs asserted that these allegations were false and deceptive and that defendant, as a "debt collector" under 15 U.S.C.A. § 1692a(6), violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.A. § 1692.
Defendant moved to stay the litigation and to compel arbitration, arguing that the Chase "Cardmember Agreements" which formed the basis for the Special Civil Part complaints it filed for Midland, required arbitration. Defendant argued that even if it technically met the definition of a "debt collector" under the FDCPA, it was nonetheless an "agent" of Midland, and thus entitled to invoke arbitration under the Cardmember Agreement.
The Cardmember Agreement provides that, "[e]ither you or we may, without the other's consent, elect mandatory, binding arbitration of any claim, dispute or controversy . . . arising from or relating in any way to the Cardmember Agreement." In addition, the agreement states:
For the purposes of this Arbitration Agreement, "we", "us", and "our" also includes our parent, subsidiaries, affiliates, licensees, predecessors, successors, assigns, any purchaser of your Account, and all of their officers, directors, employees, agents, and assigns or any and all of them. Additionally, "we", "us" and "our" shall include any third party providing benefits, services, or products in connection with the Account (including but not limited to . . . debt collectors, and all of their officers, directors, employees, agents and representatives) if, and only if, such a third party is named by you as a co-defendant in any Claim you assert against us.
Plaintiffs argued that because the Cardmember Agreement includes "debt collectors" within the arbitration clause only where they are named as a co-defendant in any suit against Chase or, here, Midland, and because their complaint asserted no claim against either Chase or Midland, defendant could not invoke arbitration under the contract. The motion judge ...